NP v Secretary of StateD [2004] EWCST 382(PC) (13 October 2005)

NP

-v-

The Secretary of State for Education and Skills

Application No. [2004] 382.PC

Before:
Ms Andrea Rivers (Chair)
Ms Pat McLoughlin
Mr Tim Greenacre

Hearing dates: 26th, 27th and 28th September 2005

Application
1. The applicant’s appeal under s 4(1)(a) of the Protection of Children Act 1999, against the Respondent’s decision to include her in the list kept under s1 of that Act, was made on 19th October 2004.

Representation
2. The applicant was represented by Deborah Davies (counsel) and the Respondent was represented by Lisa Busch (counsel).

Preliminary Matters
3. On 5th January 2005 His Honour Judge David Pearl, President of the Tribunal, made a Restricted Reporting Order under Regulation 18(1), prohibiting the publication (including by electronic means) in a written publication available to the public, or the inclusion in a relevant programme for reception in England and Wales, of any matter likely to lead members of the public to identify any child and this order was renewed by the tribunal at the outset of the hearing. For this reason all witnesses, and any child, will be referred to by their initials and the day nursery at which the misconduct is alleged to have taken place will be referred to as “the nursery”. 

The Evidence
4. All those who gave oral evidence to the tribunal were working at the nursery at or around the relevant time. 

5. For the Respondent we heard oral evidence from EC, a nursery officer and former employee at the nursery, NC and AR, deputy officers at the nursery, AB, a nursery manager, and HP, the sole proprietor of the nursery. We heard oral evidence from the Applicant, NP.

6. We read formal written statements, signed and endorsed with the words, “I believe that the facts stated in this witness statement are true” from all those who gave oral evidence to us and also from one witness, DT, who did not attend to give oral evidence. 

7. There were a number of brief , informal statements written by colleagues of NP at the request of HP, the nursery proprietor, giving their views on the professional behaviour of the Applicant. The Applicant herself submitted written testimonials from people for whom she had babysat, colleagues and friends. None of these statements or testimonials were endorsed with statements of truth.

8. We were shown relevant letters and documents, including records of appraisals in respect of NP. 

9. We asked to see a nursery incident book or similar record but were told that no such document existed.

10. We made a visit to the nursery to witness a reconstruction, in situ, of the event which had led to the allegation of misconduct which had led to NP’s name being included on the PoCA list. 

11. We were also shown statements submitted to the Employment Tribunal in respect of a claim for unfair dismissal made by NP against the nursery, heard on 13th June 2003, together with the decision of that tribunal to dismiss her claim, and their reasons for so doing.

The Law

12. The list established under s1(1) of the Protection of Children Act 1999 includes the names of people considered unsuitable to work with children.

13. S4 of the Protection of Children Act 1999 provides for an individual to appeal against inclusion of his name on the list to this tribunal and s4(3) provides that:

	If on an appeal…under this section the Tribunal is not satisfied of either of the
	following, namely –

	(a) 	that the individual was guilty of misconduct (whether or not in the course
		of his duties) which harmed a child or placed a child at risk of harm; and

	(b) 	that the individual is unsuitable to work with children

	the Tribunal shall allow the appeal….

Three stage test

14. Thus, in order to dismiss the appeal, the tribunal must find:

(i)	that there was misconduct,
(ii)	that the misconduct harmed a child, or placed a child at risk of harm and
(iii)	that the individual is unsuitable to work with children.

Misconduct and harm or risk of harm
15. The Act does not define misconduct. However, in Angella Mairs v Secretary of State [2004] 269.PC the Tribunal observed that “misconduct could range from serious sexual abuse through to physical abuse (including inappropriate physical restraint) and/or poor child care practices in contravention of organisational codes of conduct”. They referred to the case of Doughty v. General Dental Council [1987] where misconduct was said to be “a falling short, whether by omission or commission of the standards of conduct expected from members of (a) profession”.

16. “Harm” is defined in s12 of the1999 Act as having the same meaning as in section 31 of the Children Act 1989, that is “ill treatment or the impairment of health or development”.

Unsuitability to work with children
17. Where there is a finding of misconduct which harms a child or places a child at risk of harm it does not necessarily follow that an individual is unsuitable to work with children if it can be shown that the misconduct is unlikely to be repeated. 

Burden of Proof
18. Section 4 of the Act places the burden of proof on the Secretary of State

Standard of Proof
19. The standard of proof is the civil standard, that is, the balance of probability, as defined in Re H [1996] AC 563:

	“The balance of probability standard means that a court is satisfied an event
	occurred if the court considers that, on the evidence, the occurrence of the event
	was more likely than not. When assessing the probabilities the court will
	have in mind as a factor, to whatever extent is appropriate in the particular
	case, that the more serious the allegation the less likely it is that the event
	occurred and, hence, the stronger should be the evidence before the court
	concludes that the allegation is established on the balance of probability…”

20. In W v Secretary of State [2002] 115 PC the tribunal considered further the guidance on the balance of probability standard of proof set out above, in the context of an appeal against inclusion in the PoCA list and said that:

“The Tribunal is composed of people who, because of their training and professional 
experience, are very familiar with the likelihood or otherwise of incidents occurring 
that form the basis of the claim of misconduct and of the reliability of the accounts
given of that misconduct. We are therefore entitled to

		draw inferences from the facts presented to us, but we must not speculate

		 analyse the facts presented to us in the light of our particular expertise

		 form a view about whether the Secretary of State’s version of events is
		 more likely than not. In some cases, the seriousness of the allegation will 			make the version of events as described more improbable and therefore  
		more evidence will be required to discharge the burden. In other cases, 
	            although a serious incident is alleged, the Tribunal’s expertise may lead it 
		to conclude that the event described is not so unlikely and therefore the 
		balance of probability will be satisfied without much in the way of 
		supporting evidence.”

 The Proceedings in the Employment Tribunal

21. The decision of the Employment Tribunal to dismiss NP’s complaint of unfair dismissal was based on a different test from that which applies to this appeal. They had to decide, as set down in their statement of the reasons for their decision:

		“whether (HP) had a genuine belief in the truth of the allegation that (NP)
		had physically abused (JS)”

22. This tribunal, however, has to decide whether the misconduct actually occurred, not whether HP genuinely believed it had occurred.	 

The Facts

23. NP is a qualified nursery nurse aged 28. In 1998 she obtained a BTech National Diploma Level 3, in Childcare. This is the equivalent of an NNEB and is a qualification acquired over a period of time certifying that the candidate has reached the required level of practical skill and theoretical knowledge.

24. She took up permanent employment at the nursery on 29th September 1998, having previously worked there on a temporary basis to cover another employee’s maternity leave. 

24. Initially she worked in a room run by one of the most senior and experienced members of staff. NP’s performance was appraised in March 2000 using a series of indicators, based on a 1-5 scale with 1 as the highest score and she received mainly 2’s from CB who, it seems, was satisfied with her work. 

25. In August 2000 NP applied for promotion as a result of which she was put in charge of a room and in January she was appointed to the post of Nursery Officer (relief deputy officer in charge). This meant that she was a keyholder who could lock up if no one more senior was available.

26. On 14th June 2001 there is a note from HP of a complaint made to her by JF, a temporary agency employee working in NP’s room. The note records an allegation that NP had been throwing dummies at children, roughly putting them in chairs, and had got so angry at one point that JF thought she was going to throw a child against a wall. The allegation was believed and NP was informed of it. CB was asked to speak to NP about it and AB was also asked to speak to her about wearing unsuitable clothes and being abrupt with staff and children.

27. In September 2001 two new employees, DT and LV, came to work in NP’s room as assistants, working under her. On October 10th 2001, during the course of a routine appraisal, NP was told that they had complained that she was rough with children, “plonking them on chairs” and pushing one child to the floor. As a result of this complaint NP was demoted and moved to another room to work, once again, under CB’s supervision.

28. Following her demotion her work was reported to have improved and in September 2002 she was once again promoted to her former rank. Between then and December 2nd 2002 there are no records of complaints or concerns about NP.

29. On December 2nd 2002 EC, another employee at the nursery, alleged that she had seen NP abusing a child, JS. At about 12.20pm she had been walking from the kitchen to the staff room and had seen NP leaning over a pram/push chair, near the front door of the nursery, apparently on her way out. A 17 month old child, JS, was in the pram, crying, and EC said she saw NP shaking the child’s face, pushing a hat into his face and shaking it, and pushing his head back into the pram. 

30. EC did not approach NP but went into the staff room to report the incident to NH and AR, who were on their lunch break. She was visibly distressed and gave her account of what she believed she had seen to NH and AR who advised her to go to the office and report the matter to AB, a senior member of staff and the officer in charge that day. EC waited until NP had left the building with JS, some minutes later, and then went to the office to make her report to AB,  who tried to contact HP. While EC and AB were talking NP returned to the nursery with JS in the pram and took him back to his room where he spent the rest of the afternoon being looked after by her and her assistant, AP. 

31. HP, the proprietor, arrived at the nursery at 5pm. She was told about the allegation. She then saw NP and repeated it to her. She found NP’s responses unconvincing and decided to suspend her with immediate effect. She also contacted Social Services and OFSTED. There does not seem to have been any follow up from Social Services but OFSTED visited and were satisfied with the way that HP was dealing with the situation.

32. The next day there was a meeting of senior staff. EC repeated the allegation to them and it was decided that each room leader was to go back to their room and inform their assistants of what had happened. The staff would then be invited to make statements, if they wished, giving their views on NP, whether favourable or unfavourable. Nine people came forward with brief handwritten statements, most though not all of which were critical of her behaviour to other staff and to children.

33. There was a disciplinary hearing on 12th December 2002 and on 18th December NP was dismissed. NP complained that some of the statements solicited from other staff members were only shown to her at the hearing itself. HP therefore convened a second disciplinary hearing on19th February 2002 following which the dismissal was confirmed.

34. NP took a complaint of unfair dismissal to the Employment Tribunal. It was heard on 13th June 2003 and dismissed.

Findings

35. There were four allegations which could have amounted to misconduct:

	(i) the allegations reported by JF, the agency worker;
	(ii) the allegations reported by DT and DV;
	(iii) the allegations of a course of conduct, contained in the unfavourable 
	statements and comments of NP’s colleagues;
	(iv) the allegation made by EC on 2nd December 2002

36. In considering all these allegations we were mindful of the fact that the burden of proof was on the Respondent, and that, following Re H, we had to take into account whether the evidence was cogent enough, bearing in mind the particular circumstances of this case, for us to find that it was more likely than not to have happened. As in the case of W v Secretary of State above, we drew on the particular expertise and experience of the tribunal in deciding whether each allegation was proved, on the balance of probability.

The Evidence of NP
37. We also listened carefully to the explanations given by NP herself and the way she gave her evidence. She believed that her behaviour towards the children in her care was consistent. She called it “firm but fair” and explained that in her view it was necessary to control the behaviour of lively toddlers in the interests of their own safety, to prevent them upsetting each other and to “teach social skills”.  She described the situation in the confined space of the toilets where younger children were having their nappies changed while other older children came in and out to use the cubicles. If toddlers, who were unsteady on their feet, were allowed to run around while the nappy debris was being cleared up they could run into the cubicles or get hit by doors opening and closing, thus putting themselves at risk. She accepted that others might have seen her as too forceful but denied that she had ever lost her temper with children or behaved abusively to them. She agreed that she was sometimes bad-tempered and snappy with adults. She thought it quite reasonable to get cross with those working under her if they didn’t do what she told them to do, even to shout at them, just as she herself had been shouted at by more senior members of staff but she said that she would never shout at children or shake them. 

38. She gave her evidence calmly and consistently. She answered thoughtfully and seemed more puzzled than angered by the allegations. HP had described her as unresponsive when she herself had confronted her with the various allegations against her and said that she had taken this, along with the other evidence, as indicative of her guilt. In her evidence to us, however, it was clear that she was deeply and genuinely distressed by the allegations.

39. In respect of the central allegation, that of EC, concerning what had happened on December 2nd 2002, her explanation was that EC had misconstrued what she had seen. She demonstrated to us, using a pram and a doll, her version of events. This showed her putting JS into the pram in preparation for taking him for a walk to calm him down and adjusting the restraining straps on the pram, which needed to be untwisted and lengthened. 

The Allegations of JF
40. This was the allegation that NP had thrown dummies at children and had nearly thrown a child against the wall. The only evidence available to us was a brief note, made by HP and dated 14th June 2001. We had no written or oral evidence from JF and HP was not able to provide any further clarification in her oral evidence. It was strongly denied by NP. We also found the allegation about the dummy throwing bizarre and improbable in itself. 

41. Thus the evidence about this allegation fell far short of the necessary standard of proof.

The Allegations of DT and LV
42. We heard that DT and LV were young and inexperienced assistants who had come to work under NP in September 2001. HP told us that problems had arisen because they had become friends when NP had been away on sick leave and that when she had returned she had found it difficult to impose her authority over them. She felt this tended to be a problem when three members of staff worked together, especially when they were all of a similar age.

43. The complaints, recorded in HP’s note taken at the time of the complaint and dated October 1st 2001, were that NP was “rough with the children – plonking on chairs” and that a child was “pushed to the floor”. There was also a statement from DT, made in July 2005 in which she claimed that NP regularly behaved abusively to children and that she had made a number of previous complaints about this to HP. However there was no evidence from HP of previous complaints and no written record of any such complaints.

44. The statement of DT goes beyond the earlier evidence of the complaint as set out in HP’s note. In it she claims to have witnessed weekly examples of NP’s “threatening and intimidating” behaviour to children and said she had made frequent complaints about it to HP. However, these new allegations were only made some four years after they were said to have occurred and their maker was not available to give oral evidence or to be cross examined.  It is also difficult to see how children could have had the good and trusting relationships with NP described elsewhere in the evidence, had her behaviour been as described in DT’s statement.  

45. In assessing this evidence we take into account the difficult relationship between NP and her accusers, especially in the light of her self-confessed tendency to be snappy and overbearing with junior colleagues and that these allegations could, therefore, have been motivated or exaggerated by personal dislike. We are also mindful of the fact that the makers of the allegations did not give oral evidence to us.

46. Thus we find that the evidence of these allegations is not cogent enough to reach the required standard of proof.

The Allegations of a Course of Conduct

47. These were the allegations contained in the nine handwritten statements submitted by other members of staff to HP shortly after EC’s allegation and NP’s suspension. The fact that they had been told EC’s side of the story, a shocking and emotional account of abusive behaviour to a small child, and then asked to comment on their experience of her behaviour was a virtual invitation to submit adverse reports. Some of the complaints dealt with snappy behaviour towards other members of staff, something which was admitted by NP. Allegations relating to children were mainly of sitting children down or moving them too roughly. One of the statements claimed to have seen her rocking JS quite angrily in her arms prior to the incident reported by EC. This conflicted with evidence from AB, a senior member of staff who attended the hearing and gave evidence to us, that she had seen NP at around the same time “cradling the baby in a loving manner”. 

48. None of these statements was endorsed with a statement of truth and none of the makers of the statements came to give oral evidence to the tribunal.

49. We took into account that fact that NP would have made herself unpopular with some members of staff because of her snappy behaviour towards them and that this might have affected their view of her. 

50. We heard oral evidence from NH about NP’s roughness with children. However, most of what she says she saw, through a window, occurred during the period of NP’s demotion at a time when she was working under one of the most senior members of staff, CB. CB’s appraisals of NP’s work were extremely positive and it seems implausible that she would have tolerated the sort of behaviour reported by NH. Neither of the two senior members of staff who gave oral evidence to us, AR and AB, gave evidence that they had witnessed NP handling children roughly.

51. EC also gave written and oral evidence that she had observed NP behaving roughly with children on a regular basis ever since she had worked at the nursery. She gave no satisfactory explanation as to why, if the behaviour had been as abusive as she claimed, she had not reported her concerns to a senior member of staff. This was particularly difficult to understand in the context of the long period over which she claimed to have observed this worrying behaviour and the fact that she had a good relationship with AR, one of the most experienced and highly qualified members of staff and could certainly have discussed the matter with her. We think it likely that she gave an exaggerated account of anything she may have seen.

52. We balanced favourable reports of NP’s handling of children against the unfavourable reports, as well as the fact that the nursery was not able to produce any routine records showing complaints about NP, whether from staff or parents, or any incidents of harm to children. This was also against a background of regular and frequent unannounced visits to all the rooms in the nursery, by senior members of staff.

53. We took into account NP’s explanations about what she considered to be “firm but fair” behaviour. 

54. In order for us to make a finding that there was a course of conduct which amounted to misconduct we would need to be satisfied that NP had crossed a line beyond which her behaviour towards children was clearly unacceptable and unprofessional. 

55. In our view there is insufficient evidence to prove, on balance of probability, that this was so. It may be that some of her childcare practices were not of the highest standard but they seem to have been accepted practice in the nursery at that time.

The Allegation of EC

56. This was the most serious allegation and the one which led to NP’s dismissal and the inclusion of her name on the list. EC and NP gave totally different accounts of what actually happened and we therefore had to decide whether, in all the circumstances, EC’s evidence was sufficiently cogent to prove this allegation of misconduct.

The Reconstruction

57. EC claimed to have had a clear view of what happened. It was difficult to be sure whether or not this was so as there was also conflicting evidence as to where she and NP had been standing at the time. It was also submitted to us that there were dangers in reconstructing the scene so long after the event when NP’s challenges to EC’s evidence were known. At the reconstruction EC was careful to position herself precisely where she would have had the best view and we accept the submission that she may have subconsciously tailored her account to make it more plausible. There was also a detailed plan, submitted to the Employment Tribunal, giving precise measurements of the distance between her and the pram at the time of the siting which was prepared by HP’s solicitor in April 2004 following a consultation with EC. On the plan she was shown to be in a completely different position from the one she said she was in at the time of the reconstruction before us. When challenged with this inconsistency she simply dismissed the evidence of the plan. 

58. It was common ground that NP had put JS into a thick warm cover inside the pram and that it had been turned back. This would have had the effect of obstructing the view of his head. EC claimed to have seen him throw his hat to the bottom of the pram but agreed that she had not actually seen him take the hat off his head. This confirms to us that her view must have been partially obscured and that she could not have had sight of JS’s face.

EC’s evidence

59. The evidence of EC was that she had been shocked and distressed by what she had witnessed and this was corroborated by those to whom she reported it. She claimed, however, to have been too intimidated by NP, because of her seniority and her reputation for being bad tempered, to intervene at the time. Instead, she went to the staff room and spent some time discussing what she had seen with NH and AR who advised her to report the matter to AB, who was in charge that day. She said she was so fearful of NP that she waited until she had left the building with JS because she would have had to pass NP on her way to see AB. 

60. We could not accept this evidence for a number of reasons. Both she and NP were room leaders. There was little difference in their seniority. We also found EC to be confident and articulate in her evidence and assertive in the reconstruction. She did not appear to be someone who would be easily intimidated especially as she had had at least 5 years experience of working with children and had been employed by the nursery for at least 2 years. 

61. It is also hard to understand why she did not intervene to protect JS, given that she was convinced that he had been assaulted, either at the time of the incident or, with the support of colleagues, prior to NP leaving the building. In her statement she described NP’s behaviour as “frantic and aggressive” and said that “If she was prepared to use such aggression and force on a child when at risk of being seen, what would she be prepared to do when out alone with him?” This is strong language and in keeping with the forceful way in which she gave her evidence. It cannot be reconciled with her failure to take, or instigate any protective measures to ensure JS’s safety in view of what she claimed to have seen. It is also hard to reconcile it with her failure to make an enquiry about JS’s welfare on his return.

62. At times it seemed that her recollection of events had become more rather than less vivid with the passage of time. For instance, she claimed for the first time in her oral evidence that JS’s  crying at the time of the incident had changed in a way that indicated to her, as an experienced child care worker, an exceptional level of distress. Yet neither NH, AR or AB recalled having heard the cry, even though they were in nearby rooms with thin walls. AB would certainly have heard any such frantic crying since minutes before the incident she had come out of the office, having heard JS crying outside, and observed NP to be “cradling” him “in a loving manner”. In our view EC’s determination to be believed caused her to exaggerate or change, perhaps subsconsciously, her evidence. 

63. We were faced with two, conflicting accounts of what had happened. EC’s evidence was that she had seen a child being abused. NP’s evidence was that she was mistaken and that in fact what EC had seen was NP preparing a distressed child for a walk using no more force than was necessary to adjust the restraining straps and settle him in the pram. It was a plausible explanation.

64. Given the weaknesses in EC’s evidence, as set out above, and the plausibility of the alternative explanation offered by NP, we find that these allegations are not proved, on the balance of probability.

Decision

65. We find that the Secretary of State has not discharged his burden of proof and that the evidence of misconduct, as alleged, does not reach the necessary standard of proof.

66. Although, under the three stage test, we are not required to go on to consider whether or not a child was harmed, or put at risk of harm, we note that no evidence of harm to a child, whether physical or psychological, was presented to us.

67. We would also like to record the fact that it was a matter of serious concern to us that the focus of the nursery throughout was on the behaviour of NP and not the safety of the children they were alleging she had abused.  We find the fact that no one examined the child JS after the serious allegations that he had been abused by NP, either for signs of an assault or to check that he was not suffering in any other way, indicates a serious failing in the nursery’s attitude to child protection. Where there is an allegation of assault such as occurred here, the paramount concern of the nursery staff must be the well-being and safety of the child.

It is the unanimous decision of the tribunal that the applicant’s appeal be allowed.

Appeal Allowed

Ms Andrea Rivers (Chairman)
Ms Pat McLoughlin
Mr Tim Greenacre

13th October 2005